Friday, 12 October 2007

The late Rod Serling might have made this case the opening episode of the Twilight Zone, punctuated by that eerie theme music that is still so identified with otherworldly experiences. Or maybe the better vehicle would be "Catch 22," where there is no way out of a dilemma.

A death row inmate makes an appeal for staying his imminent execution on grounds that the chemicals used in lethal injections often cause such pain they constitute cruel and unusual punishment. Four justices of the U.S. Supreme Court vote for granting the stay. But hold on, it takes five. So the execution of Luther Williams in Alabama takes place on schedule, even though there is a clear indication that the court is interested in dealing with the question of torture in executions.Last month, in another case, where the central issue was the same, the court voted to take up the claim of unconstitutionality.

In that instance only four votes were needed.

Fade to the end of this nightmare with a curse. "May he haunt their nights forever." That comes from Williams' lawyer who accuses the five justices who voted against the stay of deliberately letting a man die when they knew they were about to put the issue on the docket.

Now with the court set to determine whether the chemicals used in lethal injection are often so painful that they should be banned, arguments for a nationwide moratorium on the death penalty seem more than a little reasonable. A number of states already have taken that step and several more seem ready to do so, including even those that have been among the most aggressive in carrying out capital sentencing.

The court's decision to determine the constitutionality of a certain method of execution might seem just another step toward an eventual ban of capital punishment. While those who oppose the death penalty no matter how administered might see this as enhancing their crusade, it would be too optimistic on their part to believe that might happen anytime soon. The court's conservative make up assures at least four votes against abolishing state and federal executions and at least one other justice could be counted to do the same.

But there has been a shift in public sentiment away from capital punishment despite the fact that there are crimes so heinous that anything less than that seems unsuitable. The use of modern technology, mainly improved DNA testing, has heightened concern about the possibility of mistaken executions. A few years ago, the governor of Illinois put a moratorium on the death penalty after it was disclosed that DNA had proved that a number of convicts on death row actually were innocent. Since then other states have followed suit or have slowed the process.

The fact is, despite the current make up of the court, that pressure from the states might result in the modification of capital punishment. The United States has become more and more isolated internationally in this matter -- almost standing alone in the use of the death penalty. There have been instances where other nations refuse to extradite those accused by U.S. authorities of a capital crime because of this country's execution policy.

And in a recent case similar to that of Williams, Virginia Gov. Tim Kaine stopped the scheduled execution of a man after four justices voted at the last minute to stay his death. The execution was to take place on June 13 even though the court had decided to take up his appeal after returning from the summer recess. Kaine's reasoning was that "basic fairness" demands that inmates be allowed to exhaust all appeals before execution, which he said was of course irreversible, even if the appeal has merit and is later accepted. He said that the fact four justices of the Supreme Court voted to stop the execution was more than enough justification for his doing so.

It is too bad the governor of Alabama did not take the same stance in the Williams case. The debate over the constitutionality of capital punishment has been one of this nation's thorniest issues since the penalty was reinstated several decades ago. That is not likely to change. But the fear that any number of innocent people have been put to death is never more real than today.

For that reason alone, those convicted of capital crimes often spend decades on death row before the sentencing is carried out, living in an inescapable twilight zone where ultimately it may be one vote that finally decides the issue.

(Dan K. Thomasson is former editor of the Scripps Howard News Service.)